A critical analysis of the evolution of public participation in environmental decision-making in the South African mining sector

Abstract

In this dissertation I explore how the international law principle of free, prior and informed consent (FPIC) can enhance public participation, to promote environmental justice for communities affected by environmental decision-making in the mining sector in South Africa. Public participation required in terms of the mining sector environmental regulatory framework in South Africa is underscored by a requirement to ‘consult’. In chapter one, I describe how the requirement to consult differs from a requirement to secure consent in terms of FPIC. I describe public participation (i.e. consultation) requirements related to applications for rights, permits, licences and authorisations that must be in place prior to commencement of mining operations. I argue that where the level of public participation requires mere consultation, it can easily amount to a regulatory tick-box exercise given that the views of mining-affected communities can be manipulated or overlooked, with mining developments proceeding despite devastating effects on communities. In chapter two I describe how FPIC has become part of the regulatory framework governing mining activities through the court’s purposive interpretation of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) in Baleni and Others v Minister of Mineral Resources and Others and Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another. In chapter three, I engage with scholarly literature on FPIC to analyse why and how environmental justice should and can be enhanced by embedding FPIC into legislative public participation requirements. I argue that FPIC, which now forms part of South Africa’s law through the IPILRA, should be a prominent feature in public participation processes for mining-affected communities generally, and not only for informal land right holders.